Icon Building Services v Waverley Council

[2007] NSWLEC 295

Land and Environment Court

of New South Wales

CITATION:	Icon Building Services v Waverley Council [2007] NSWLEC 295
PARTIES:	APPLICANT Icon Building Services RESPONDENT Waverley Council
FILE NUMBER(S):	10081 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification application Off-street parking
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
DATES OF HEARING:	23 May 2007
EX TEMPORE JUDGMENT DATE:	23 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr G McKee, solicitor McKees Legal Solutions RESPONDENT Mr S Patterson, solicitor Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

23 May 2007

07/10081 Icon Building Group v Waverley Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the modification of the conditions of a development consent. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1. COMMISSIONER: This is an appeal of pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Waverley Council (the Council) on 21 August 2006 of an application to modify Development Consent DA-497/2005 for additions and alterations to 29 Anglesea Street, Bondi (the site).

2. The house presently located on the site is one of a pair of semi-detached houses located on the western side of the street. Immediately in front of the site, no street parking is permitted on the site’s side of the street.

3. The modification application sought the deletion of a condition of consent which condition, itself, required the deletion of a proposed car parking space in the front setback to the dwelling.

4. The modification application included revised plans for a longer car parking space than had originally been proposed – however, that longer space is no longer pursued by the applicant.

5. As a result of discussions on site during the course of the view, Mr McKee, solicitor for the applicant, foreshadowed amendments to the design that would have had the effect of:

• restricting the entry to the parking space from the street to be 2 m wide;
• creating a landscaped area generally 1.6 m wide at the street frontage and at the front to the house but bowing out in the middle to permit vehicle doors to be opened;
• planting of an additional tree and, if necessary, the replacement of the existing palm tree and the planting of a further additional tree;
• the treatment of the surface of the pathway and the proposed parking space to be an open chequerboard grass and concrete surface.

6. The applicant also indicated, through Mr McKee, preparedness to accept a modification of the conditions of consent that would restrict the length of any vehicle parked on the site to being not longer than 4.4 m – this being the maximum length of the parking space. The applicant also agreed to a condition that no vehicle parked on the site was to be permitted to overhang the boundary of the site and into the public domain.

7. Mr Patterson, solicitor for the Council, press a number of provisions contained in a succession of development control plans, culminating in the present consolidated Waverley Development Control Plan 2006 (the DCP) but originally imposed from May 2003 onwards with respect to vehicular access, parking and off-street parking controls. There is no significant difference between the provisions of the various versions of the DCP in this regard.

8. With respect to the DCP, I am obliged, following the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, to make the provisions of the DCP the starting or focal point of any consideration of an application.

9. There is no suggestion in this case of any of the strictures dealt with by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, as to the appropriateness or otherwise of the adoption and consultation process for the DCP had been breached.

10. Although the provisions of the DCP are required to be the focus or starting point of my consideration, the Court of Appeal has made it clear that they are not determinative and may, subject to appropriate consideration of all matters pursuant to s 79C of the Act, be set aside if, on a merit assessment of a proposal, it is otherwise acceptable - not withstanding any breach of the provisions of the DCP.

11. Indeed, variation or departure is contemplated by the provisions of 3.11 a Part I of the DCP – that being the part dealing with parking that requirements in a more specific fashion under the heading of Land Use and Transport. Here, the DCP provides that:

Council may waive or reduce any car parking standard contained within this Section if Council considers that such a variation will permit a better planning solution to development of the subject site.

12. This provision mirrors a provision contained in the earlier version of the DCP.

13. The objectives contained in Part D entitled Dwelling House And Dual Occupancy Development, for vehicular access for residential development, are contained in 5.7.

14. There are four objectives that are stated as being the purposes for a variety of strategies and controls being imposed.

15. The first is to ensure that the design and size of off-street parking facilities does not unreasonably detract from the appearance and quality of the dwelling house or streetscape.

16. I am satisfied that the proposal does not offend that objective for the following reasons:

• The proposal now does not involve any interference with the fabric of the building. The front veranda will be retained and the renovated presentation of the dwelling will be to the street (including that veranda and its tessellated tiling);
• The imposition of the condition to delete the proposed car parking space in the conditions of consent was not accompanied by any requirement for a landscaping plan or any alternative landscaping – it merely required the retention of the present state of the front setback area of the house;
• The present proposal not merely includes the car parking space but includes some attractive and useful opportunities for landscaping (in a landscaping plan to be approved by the Council) as part of the consent for a hard sent parking space;
• The external appearance of the front setback area, as it presently stands, is not attractive – despite there being three trees presently located in the setback, it contains no low-level vegetation (and the existing tree which would necessarily be removed as part of the construction of any parking space is under significant threat from substantial ivy growth upon it).

17. I am satisfied that the landscaping opportunities afforded by (and as a necessary consequence of) the present application will not result in any unreasonable detraction from the streetscape but will, in fact, provide an opportunity to enhance the streetscape – an opportunity not presently provided by the current conditions of consent.

18. The second of the objectives is to maximise pedestrian and vehicular safety. There is nothing to which I am taken that would suggest that there is any likely impact on pedestrian or vehicular safety - particularly if the proposed landscaping ensures that adequate sightlines are maintained for exiting vehicles from the site.

19. The third objective is to minimise the loss of on-street car parking. I am satisfied that the provision of a car parking space on the site will not result in any loss of on-street car parking given that there is presently no parking permitted on the western side of the street.

20. Indeed, the necessary corollary of the provision of an off-street car parking space on the site will be to increase, by one, the availability of on-street car parking for other persons (by removing the demand for an on-street car parking space from the residents of the present dwelling).

21. The final objective is to minimise the loss of views from the public domain - that objective is clearly not relevant in these proceedings.

22. I am satisfied that there is no transgression of any of the objectives of the DCP by that which is proposed.

23. Indeed, the position is to the contrary. With respect to objectives (a) and (c), I am satisfied that there is a positive contribution made by the proposal - given the unusual context of there being no on-street parking permitted on the western side of the street and no condition for any landscaping to be required to enhance the presentation of the house in its streetscape.

24. In addition, in the context of the general streetscape (rather than merely the individual presentation of the present house on the site), I am satisfied that the precinct in which it is located in (which I consider appropriate to be nearly all Anglesea Street) is one whose streetscape is undistinguished at best; contains at least one red brick 1960s three-storey walk-up flat building and contains an eclectic mix of off-street parking in front setbacks - some of which are, in the broad, similar that which is proposed and others of which involve a greater element of hard stand area and lesser opportunities for landscaping than will be provided by the revised plans which have been foreshadowed.

25. I am satisfied that, in a general streetscape context, allowing for the provision of off-street parking will certainly not detract from the general streetscape and will, as earlier outlined, make a positive contribution to that which is presently there.

26. There is certainly no reason to impose a zero parking requirement as is anticipated in the discursive paragraph which follows the four specific enumerated objectives discussed above.

27. There are a number of specific breaches of the DCP which I need to address.

28. The first is that of the non-compliance with the minimum dimensions for a parking space.

29. Having reached the conclusion that a parking space in the front of the dwelling, under the circumstances, is appropriate and can make a positive contribution, I am satisfied that to seek to achieve greater compliance with the minimum dimensions would, in fact, detract from the contribution that the dwelling and its front area could make to the streetscape.

30. The first reason for this is that to achieve the minimum length would require the demolition of the veranda – an element of the s 96 modification application strongly resisted by the Council for obvious and appropriate reasons which do not need to be repeated.

31. The second, that of the achievement of the minimum we easily fit easily achieved by the proposed revised design. I am satisfied that there is no reason to have particular regard to that if in

32. The final and significant transgression is the question of landscaping area (setting aside, for the present, the question of building line compliance) - both the relevant requirements, in Parts D and I of the DCP dealing with the question of minimum landscaping areas and provision of adequate soft landscaping.

33. The Council puts the proposition to me that if I were minded, for the reasons I already outlined, to permit a parking space for this building, it should be specifically delineated and removed from the access pathway to the house and that there should be a narrower landscaping strip and a specific landscaping barrier between the path and the parking space.

34. I am satisfied, on balance, that the provision of a larger landscaping area will provide a greater variety and opportunity for appropriate landscaping including deep soil planting of reasonably sized trees in an urban context that would not necessarily be available at the alternative regime were to be adopted for a

35. Retention and re-establishment of trees in this sort of urban landscape is clearly a desirable feature rather than the creation of more Buxus hedges futures or the other forms of mere symbolic landscaping as is evidenced in the dwelling immediately to the north (which is the other half of this pair of semi-detached dwellings).

36. It would be appropriate for need to be for a limited but non-barrier strip of vegetation such as mono grass that will, in a streetscape presentation since delineated between the pathway and the parking area but would not a to prevent the use of the pathway area as a space within which car doors can be to be opened nor would prevent the exiting of passengers from a vehicle.

37. The final matter that I need to address is the question of providing that such parking space be behind the building line.

38. It is clearly an absurdity to suggest that that would be possible on the site, as it would involve a substantial demolition of the front of the house and all of the veranda (which the Council considers is a desirable element to be retained).

39. Having reached the broad conclusion that the provision of a parking space (appropriately designed) can make a positive contribution to the streetscape, there is no need to give further consideration to a restriction that quite clearly cannot be observed.

40. For all those reasons, the appeal will be upheld. The development consent plans will need to revised to give effect to the matters that have been discussed above.

Commissioner of the Court